Munro v State of Queensland[2013] QDC 140

DISTRICT COURT OF QUEENSLAND

1. [1]
   The trial of this matter is listed for hearing over three days commencing on 29 July 2013.

2. [2]
   The plaintiff applies for leave to amend her statement of claim under r 380 of the Uniform Civil Procedure Rules 1999. That application is not opposed. Leave is granted, by consent.

3. [3]
   The plaintiff also applies for leave “…to rely on a report of Brendan McDougall, Engineer…” which, in terms of the proposed order, would be required to be provided to the defendant within 14 days.

4. [4]
   Mr McDougall is an engineer. The need for obtaining his expert report is said to arise from the defendant having informed the plaintiff that it objects to the plaintiff calling a witness, Mr Richard Turner, by telephone. The defendant objects to Mr Turner giving evidence by telephone because it does not consider him to be an expert. The defendant says that it does not consider the report furnished by Mr Turner to be admissible.

5. [5]
   These matters were communicated in a letter from the defendant’s solicitors to the plaintiff’s solicitors on 11 June 2013. Whether or not the defendant had prior to that date informed the plaintiff that it did not consider Mr Turner to be an expert is controversial. In their letter of 11 June 2013 the defendant’s solicitors say:

“As previously advised, we do not consider Mr Turner to be an expert. Further, we do not consider his reports to be admissible. These issues will need to be dealt with at trial. Accordingly, we require Mr Turner to appear in person.”

6. [6]
   Mr Patino, the solicitor for the plaintiff, deposes to having reviewed his file and being unable to locate any correspondence from the defendant’s solicitors which previously raised either Mr Turner’s expertise or the admissibility of his report. Mr Patino invited the solicitors for the defendant to identify any earlier correspondence in which these matters were raised. The defendant’s solicitors’ response did not identify any such earlier correspondence.

7. [7]
   Counsel for the plaintiff submits that “It is incumbent on the defendant to record their objection well in advance [of their letter on 11 June 2013]”^[1]; although he does not otherwise identify when that might have been.

8. [8]
   There is nothing in the UCPR, nor any practice direction, which requires the notification of an objection such as the plaintiff asserts should have occurred here.

9. [9]
   Counsel for the plaintiff submits that the failure to take the objection at an earlier time is contrary to the “cards on the table” ethos which now applies to personal injury litigation. In my view, whilst such an ethos does apply to personal injury litigation (and litigation more generally) it does not extend to requiring a party to forewarn an opposing party of the objections which it may take to that opposing party’s evidence. In that regard, I do not think that the authorities to which counsel for the plaintiff referred in his written submissions^[2] establish his proposition. Certainly each of the cases refers to the “cards on the table” approach to litigation; but they do so in the context of disclosure of documents, or production of documents referred to in evidence or pleadings. They do not extend to requiring a party to inform another party who has disclosed or produced a document as to what objection it may take to that evidence at trial. In some cases, particularly those which proceed by evidence in chief being provided by affidavit, the court may direct that objections to evidence be taken before trial. But this is not such a case.

10. [10]
    The plaintiff does not concede the validity of the defendant’s stated objections to Mr Turner’s evidence. To the contrary, the plaintiff’s submissions on this application were that it “… in no way concedes that the report of Mr Turner is inadmissible or that its author is not an “expert”. Ultimately that is a matter for the trial judge”.^[3]

11. [11]
    The plaintiff’s reservation of those issues to the trial judge is consistent with the position stated by the defendant in its letter of 11 June 2013. The plaintiff submits that:

“Given the late notification of (the defendant’s) objection, it is reasonable for the plaintiff to take steps to protect her interests.”^[4]

12. [12]
    It is not, therefore, that the plaintiff makes this application so that she may, necessarily, call expert evidence in substitution for that which would otherwise have been given by Mr Turner. The evidence of Mr McDougall may well be evidence in addition to that given by Mr Turner if, as the plaintiff asserts, Mr Turner is an expert whose report is admissible.

13. [13]
    Furthermore, it is not apparent to me, either from the material read in the application or the submissions made for the plaintiff, how it follows that the need to apply to rely on Mr McDougall’s evidence is occasioned by the defendant’s notification of its objection to Mr Turner’s evidence. The material discloses nothing of Mr McDougall’s expertise or specialist area of knowledge. He is identified in the application simply as “Engineer”.

14. [14]
    On an application such as this it would be desirable to see the report upon which reliance is sought to be placed. There is no report. Given that the plaintiff made its application within two days of receiving the defendant’s letter of 11 June 2013, the absence of a report is understandable. However, no attempt has been made to identify the issues upon which Mr McDougall will be asked to express his opinion. No attempt has been made to identify the aspects of Mr Turner’s report upon which reliance would otherwise be placed in the absence of objection to it, which would now be addressed by Mr McDougall. Without in any way expressing a view as to the admissibility of Mr Turner’s report, it can be observed for the purpose of considering this application that Mr Turner makes no claim to any engineering expertise or specialised knowledge.

15. [15]
    The connection which the plaintiff seeks to make between the defendant’s objection to Mr Turner’s evidence on the one hand, and the need to call evidence from Mr McDougall on the other hand, is simply not demonstrated.

16. [16]
    It is in that context that the defendant submits that there is no utility to the order sought; and that the order would be hypothetical.

17. [17]
    The defendant says that there is no utility in the order because the plaintiff can obtain the report; which will require its disclosure. Depending on the content of the report this may or may not have consequences. The trial judge may disallow it. It may result in an adjournment. The defendant’s position in respect of the report, and any consequence which might flow from it, cannot be known until it has considered it.

18. [18]
    The defendant identifies that even if an order was now made allowing the plaintiff to rely upon a yet to be prepared report of unknown content, then, when prepared and its contents known, the trial judge may re-visit that earlier interlocutory order. Put shortly, the order sought by the plaintiff in this application could not bind the trial judge.^[5]

19. [19]
    The defendant says it is hypothetical because there is nothing to demonstrate that any report obtained would be admissible.

20. [20]
    I agree with both of these contentions of the defendant. In my view, the plaintiff’s applications is brought at such a level of abstraction that it should not be allowed.

21. [21]
    The application is said to be brought under r 429 of the UCPR. Rule 429 does not, in terms, provide for the grating of leave to rely upon an expert report. It imposes an obligation to disclose expert reports within certain timeframes unless the court otherwise orders. Assuming that r 429, at least in combination with r 367, would permit an order of the kind sought by the plaintiff to be made, I would not be prepared to do so without the report, or at least a strong and clear understanding of its proposed content and the expertise of the proposed witness.

22. [22]
    I refuse the application in so far as it seeks an order in respect of the proposed report of Mr McDougall.

23. [23]
    This refusal does not inhibit the plaintiff from obtaining a report and seeking to rely upon it at trial. That, properly, will be a matter for the trail judge; or another judge before whom any further application is brought for consideration in light of the report having been disclosed and its content known.

24. [24]
    Costs seem to be governed by s 316(4) of the Workers Compensation and Rehabilitation Act 2003, by which costs of an interlocutory application may only be awarded if the court is satisfied that the application has been brought because of unreasonable delay by one of the parties. I am not satisfied that this is the case. Accordingly, there will be no order as to costs.